There’s a very good explanation for why I’ve shirked my bloggy duties for eight weeks. I’ve been given a once in a lifetime opportunity to work at an unbelievably high level of government, which is all I really want to say at the moment. I’ll resume updates sooner rather than later, when I return above water to breathe air, as mammals are wont to do.

Jammie Thomas isn’t the only file-sharer to choose to litigate her defense. While it’s true that most people the RIAA sues for copyright infringement elect to settle (or point out that they don’t own a computer, or that they’re dead), a graduate student named Joel Tenenbaum has just finished litigating his defense in a civil copyright suit against the RIAA.

I think it’s safe to say that it could have gone better. A few weeks back, I wrote about JNOVs, noting that

…when a judge overrules a jury, and issues a verdict notwithstanding the jury, she is not deciding issues of fact. The judge is not permitted to decide that a witness is lying, or that there’s simply no way Billy’s alibi could be true. (As always in our legal system, there are exceptions…)

The Joel Tenenbaum case is a sterling example of a judge being permitted to direct a jury’s verdict. Mr. Tenenbaum testified that he willfully downloaded the songs in question willfully, and that he infringed on the copyright of the RIAA in doing so. When the defendant testifies under oath that he has satisfied all the elements of the crime or tort in question, there are no more issues of fact to be resolved. If there aren’t any issues of fact for the jury to decide, the judge may direct a jury which party the should return a verdict for.

That’s precisely what Judge Nancy Gertner did. While she refused to rush into a directed verdict, after carefully reviewing the transcript of Mr. Tenenbaum’s testimony, Judge Gertner granted the RIAA’s motion for a directed verdict. The jury then decided that $675,000 for 30 songs was just about fair, meaning that the cost of downloading a single song is $22,500. At that price, iTunes starts to seem like a bit of a bargain.

Some commenters have expressed outrage at the verdict, but the fact is that there are lots of things you can do that receive disproportionate penalties. Speeding tickets, littering tickets, parking at expired meters, and even some of a medical malpractice judgments are all good examples of disproportionate penalties for pissing off society. Deterrents are supposed to be disproportionate. That’s why they deter.

Really, once Mr. Tenenbaum’s fair use defense was rejected (before the trial began), the result was largely a foregone conclusion. The only real question was how severe the damages would be: the statute provides for anywhere between $750 and $150,000 in damages per song. The damages of $22,500 per song is less than a third of the median $75,375 per song. On the other hand, it is 22,500 times more than it would have cost Mr. Tenenbaum to buy the songs. Even if the RIAA got to pocket half of the price of the songs they sold, they’re getting in damages 45,000 times more than they would have gotten from selling the songs.

Neither the Thomas nor the Tenenbaum cases were cases that the RIAA was in any danger of losing. While Mr. Tenenbaum had a good PR campaign on his side, the fact is that he was gambling on the Fair Use defense. It’s hard to see how a judge could give Mr. Tenenbaum the benefit of the fair use defense without completely eviscerating copyright as a whole.

Copyright as a Whole

Copyright is, essentially, a monopoly on the fixed expression of an original idea. Do you have a great idea for a play about teenage lovers caught between two warring families? You’d better write it down. What’s that? You say that Bill Shakespeare got there first, like four hundred years ago? Well, then, the parts of your tale of woe that are public domain, like the “teenage lovers caught between two warring families” are probably not going to be protected by copyright law.

But the vulgar limerick that Homey O. recites to melt Daddy Cappy’s heart, and get him to agree to let the two young lovers live in peace? That specific part of your tale could be protected: you could have a monopoly on the use and sale of that limerick. Who knows? It might be compelling.

But your monopoly isn’t absolute. Neither is the monopoly that copyright affords the RIAA over the songs their employees write. The only real avenue for appeal that Mr. Tenenbaum has remaining is the Fair Use defense.

What Even is Fair Use

Fair Use is kind of a “yeah, but” defense: you concede that the plaintiff has a copyright on the stuff in question, but you say that your use was of a harmless or worthy enough nature to fall within the safe harbor of the Fair Use provision of the copyright law.

The four factors are explicit in the text of the act themselves. The “purpose and character” of the use (let’s use Mr. Tenenbaum’s illicit downloading as an example) refers to the infringer’s use of the works in question: was it for commercial or noncommercial purposes? Mr. Tenenbaum wasn’t downloading the songs for the purpose of writing legal scholarship articles on them, however, he isn’t accused of selling bootleg copies of albums he downloaded, either. Society wants reporters and educators to have access to information to share with the rest of us, and the fair use provision reflects that.

The nature of the copyrighted work, in this case, is probably the factual versus expressive distinction (in Harper and Row, it also referred to published versus unpublished works, but that’s irrelevant here). Were the songs Mr. Tenenbaum downloaded factual works, or expressive works? The songs that the RIAA owns are expressive works: creative pieces written to entertain. By contrast, the articles the AP writes are factual reports of historical events. Society has a greater interest in straightforward presentations of facts than musings about muffin tops. Mr. Tenenbaum will be hard pressed to convince any court that society’s interest in “My Humps” should override the author’s copyright. The Fair Use defense works better when you’re trying to share something factual and educational, like an AP article, than it does when you’re trying to share something like My Humps.

The “amount of work used” is pretty obviously not in Mr. Tenenbaum’s favor. He has admitted to downloading the entirety of each song in the complaint. In cases where you only use a little bit of the work in question, your use is substantially less infringey.

The last factor, “market effect,” is the beginning and end of the argument for most people that don’t know anything about the Fair Use defense. It’s true that if Mr. Tenenbaum’s downloading didn’t do anything to affect the market for legitimate, RIAA-sold copies of “My Humps,” his use seems a lot more fair. However, this is not determinative; in fact, none of the factors individually are determinative.

While the last factor, “market effect,” cuts in Mr. Tenenbaum’s favor (his downloading can’t seriously be said to affect the market in any significant sense), the first three factors all cut against him. With three factors that cut against him, Mr. Tenenbaum’s Fair Use defense will be an uphill one. In a future post, I’ll try to sort out how Mr. Tenenbaum’s appeal will go.

In case you haven’t read it by now, the Wall Street Journal’s superb Law Blog featured the Anonymous Lawyer’s take on the lean times facing BigLaw.

We’d also like to take this opportunity to remind you about our “Green Energy” program. The environment has always been something we’ve intended to care about, and now we’ve decided to finally make the bold claims in our recruiting materials a reality. In that spirit—and having no relationship at all to any sort of cash flow difficulties you may have heard we are facing (not true)—beginning this Friday, our building will no longer have electricity.

I confess that I own a copy of George Orwell’s 1984. I’ve read it, and enjoyed it. I will also confess to going through a bit of an anti-authoritarian phase in my youth; my hair was shaggy, I wore flannel shirts with holes in them, and I referred not infrequently to a vague consortium of evildoers known collectively as “The Man.” But here’s the important thing: I learned more about the world, and subsequently stopped spouting insipid nonsense. Some people have yet to do that.

But first, Dear Reader, let me tell you a story. Amazon sells a device called the Kindle. The Kindle is like an iPod, but instead of playing music, it displays books. (In point of fact, the Kindle also can play music, but this ubiquitous feature is built into practically any consumer electronics you can think of today.) Kindle owners put books on their device by connecting it to a computer and either (1) purchasing books from Amazon directly, or (2) “finding” the full text of books somewhere else.

Given that many works from as far back as 1923 are still under copyright, “finding” the full text of books is tricky. The wonderful Project Guttenberg makes books that have lapsed into the public domain available for download at no cost. But if you’re looking for copyrighted (read as “most”) books, you’re in a bit of a pickle.

The Options

Your first option is to buy from Amazon. I’m told it’s quick, and you can purchase books using the Kindle’s wireless modem anywhere you can get a cell phone signal. More on this later.

Your second option is to bootleg books. While downloading movies and music makes headlines, there are numerous groups that specialize in pirating books. The Harry Potter books were notably pirated weeks before they came out, and the popular Twilight series of books are similarly the subject of piracy. The market forces that drive book piracy are a little more complicated than the ones behind movies and books.

Initially, you may ask why anyone would bother to pirate a book when there are these things called libraries that give books away, let you read them, and charge you a nickel if you’re a slow reader. Wildly popular book series have rabid (young) fans that all need to read this book, like, today, ohmigod. Libraries aren’t exactly rolling in money at the moment. Why should they buy a hundred copies of Harry Potter and the Inane Plot Twist today, when in a month, five copies will suffice? Libraries don’t necessarily serve the needs of masses of rabid fans for wildly popular books.

What does that even mean

And piracy means different things to different people. Every day as I walk to work, I pass by a table of DVDs for sale for five dollars each. These are obviously pirated films, many of which are actually still in theaters. Bootleg copies of movies abound on the subway, even if you’re nowhere near Chinatown. However, the bootleg book market isn’t quite as confrontational.

Again, when libraries fail to serve the market, Harry Potter pirates will pop up on street corners in major metropolitan areas, but the fact is that book piracy is almost entirely confined to digital distribution on the internet, and for good reason. Books are big: while blank CDs and DVDs are a few pennies, buying reams of paper and ink and binding the books is significantly more labor (and wallet) intensive.

sidebar: You’ll note that books are distributed in analog format (paper), while music and movies have shifted to digital formats (on physical media) to cut costs. However, the reason that record companies and film distributors prefer to distribute their products digitally - effortless and instantaneous duplication - is one of the many reasons that piracy is as widespread as it is among music and movies.

Pirates of the HTTP’s

So what does this all mean? I submit that book piracy is mostly done on the internet, and mostly for books for which the library’s “come and get it for free” offer fails. Wildly popular books among people who are technologically sophisticated - often the young and the nerdy - seem to be the most pirated: Twilight and Harry Potter.

Remember the Kindle? If you’re not a young person desperate to find out what happens in Harry Potter and the Magical Prom Date with a Were-Cheerleader, and you’re not interested in the complete works of John Locke or other fine public domain texts, piracy isn’t likely satisfy your demands any more than the public domain will.

So you toss some dollars Amazon’s way, and you download 1984: a nice, heartwarming tale of fascist autocracy. A few weeks later, Amazon finds out that the company that started selling 1984 didn’t actually own the rights to it. Oops. While this seems like something that would behoove Amazon to check out before selling something, who am I to argue with runaway success?

Amazon subsequently removes the offending book from its online marketplace, and deletes the book from its customers’ Kindles. The first half is undeniably a good idea, and the second half makes us feel a little squeamish because we as a society don’t really pay attention to the difference between a license and a purchase. One is a running contract, and the other is a change of possession. More on this in another essay.

But the fact that one of the books in question is 1984 led swiftly to the cries of Big Brother, hackneyed Animal Farm references, and a facepalm-worthy amount of e-outrage. Dear Reader, I’m taking a stand.

This is (barely) a stand

Everyone shut up. This is not Big Brother, it’s Big Bother at best. The fascists in Orwell’s book were autocratic government bureaucrats that monitored their citizens, lied to them, and controlled as many aspects of their lives as possible.

Amazon is not the government. They only know what you voluntarily tell them (name, age, address, favorite movies, credit card number, phone number), and there is no law requiring you to tell them a damn thing. Stop crying Big Brother every time someone with more money does something you don’t like.

Amazon’s jackbooted thugs haven’t kicked in your doors to rip your children from your arms. Amazon did something catastrophically stupid by selling a book it didn’t have the rights to sell. (What idiot said piracy was only for the young Harry Potter fan?) As Amazon had the ability to remove the offending book from Kindles, one of their lawyers probably pointed out that Amazon could be guilty of copyright infringement if they didn’t. Amazon put themselves in a lousy spot and jumped ship as swiftly and clumsily as possible.

Upon reflecting on my essay on the latest developments in the Lori Drew trial, I fear I have made JNOVs sound terrifying. Dear Reader, I assure you that the judicial system is not inherently broken because judges have an apparently final say in any trial. Of course, there is always the appeals process, which is but a small consolation (there seem to be many in the judicial system) for someone who “wins” a trial only to have a judge decide the opposite way. But the important thing to understand about JNOVs concerns the difference between issues of fact and issues of law.

Law students read appeals almost exclusively, in no small part because nearly every trial is focused around determining what actually happened: what did Billy say? What did Billy do? What did Billy intend? (That peculiar sound you hear is the sound of ten thousand philosophers at ten thousand typewriters, one of whom will accidentally theorize about the collected works of The Bard when given a large enough graduate student stipend.) The appeals process focuses on the proper construction and application of laws, and in some cases, on the Constitutionality of the laws themselves.

With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or

He recklessly causes physical injury to another person; or

With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Assault in the third degree is a class A misdemeanor.

Let’s just focus on the first variety of Assault in the Third Degree. There are a few elements to this:

intent to cause

physical injury

to another person

[actually] causes

such injury

to such person

or a third person

Whether or not Billy “intended to cause” is an issue of fact. Did Billy, in fact, have that intent? That’s a question for the jury. Was Billy’s intent to cause a “physical” injury? Jury question. Is the injured person “another person?” (Easy) jury question. So on and so forth.

Issues of law are the kind that laypeople roll their eyes at. If Billy scared someone so badly that they had a heart attack, is that a physical injury? When the law says “causes,” what does it mean? Billy caused someone to be scared, which is a far cry from stabbing someone, or pushing someone down a flight of stairs. Further, although Billy may have intended to scare this person, does the law transfer his intent to scare over to an intent to cause a heart attack? These are all issues that are hopelessly absurd in my elementary hypothetical situation, which illustrates why law professors spend more time thinking up exam questions than I spend on blog posts.

So when a judge overrules a jury, and issues a verdict notwithstanding the jury, she is not deciding issues of fact. The judge is not permitted to decide that a witness is lying, or that there’s simply no way Billy’s alibi could be true. (As always in our legal system, there are exceptions for outrageously inept juries.) But after the jury decides what the basic facts are, and then proceeds to misapply those facts to the law, the judge can enter a JNOV.

In my horrible hypothetical, if the jury were to find that Billy did not actually cause the injury to the third person (an element in any of the three varieties of Assault in the Third Degree), but nonetheless convicted him, the judge can overrule the jury because at that point, the issue is a matter of law. The jury has done its job in finding what the basic facts of the case are, but has failed to properly apply the law. In this contingency, the judge may step in and assure that a convoluted legal process does not lead to an improper decision.

A while back, I wrote about Lori Drew. She’s the woman who was indicted for violating a federal anti-hacking statute prohibiting the “unauthorized access” of MySpace’s computers by lying about her age and gender when she signed up for an account. Of course, tons of people do that on a daily basis; Ms. Drew was indicted not primarily on the basis of her dishonesty, but on what she did with her account. Under the guise of a teenage boy, Ms. Drew harassed 13 year old Megan Meier until the teenager committed suicide.

sidebar: I feel the need to point out how deeply I believe that what Ms. Drew did was despicable. Children bullying children is an inevitability of a child’s false steps in developing interpersonal skills. Adults bullying children is an unacceptable and unforgivable failure as a human being.

Ms. Drew was tried and convicted for unauthorized access of the MySpace computer system. She escaped conviction for the felonies, but was convicted of the corresponding misdemeanors. Threat Level seemed to focus on the fact that Ms. Drew wasn’t a felon, but being convicted of three misdemeanors still means you can go to prison for three years. Small comfort, then, that you’re not a felon. (N.B. - Contrary to the popular misconception, being convicted of a felony does not automatically disqualify a person from voting.)

The big news is that the presiding judge, the Hon. George Wu, is apparently ready to toss out the jury’s conviction of Ms. Drew, and will dismiss the case entirely. Judge Wu has expressed concern that the prosecutor’s claim (breach of terms of service constitutes a federal crime) is misguided, and that lying to MySpace should be a breach of contract rather than a violation of a federal anti-hacking statute. From the article:

“Is a misdemeanor committed by the conduct which is done every single day by millions and millions of people?” Wu asked. “If these people do read [the terms of service] and still say they’re 40 when they are 45, is that a misdemeanor?”

Frankly, I’m relieved to hear that the prosecutor’s tactic isn’t going to work. We’re all appalled by Ms. Drew’s actions. But let’s all recognize, along with Judge Wu, that a federal anti-hacking statute is not the proper avenue to punish people like Ms. Drew. As every law professor everywhere has always said, “bad facts make for bad law.” Let’s not torture the meaning of a law just to make sure that someone gets their comeuppance. If you start stretching the meaning of certain terms for these heart-wrenching cases, you run the risk of the laws being misapplied in other cases. None of us think the government needs (or should have) the power to throw us in jail for lying about our age on MySpace, or our favorite book on Facebook. I won’t rehash this.

However, a number of sources are being a little sloppy with their language, as is often the case with laypeople and 1Ls discussing legal technicalities. Judge Wu isn’t overruling the jury’s verdict: he’s dismissing the case because the prosecutor didn’t choose the right law to indict the defendant with. This is the same thing that would have happened had the prosecutor charged Ms. Drew with reckless driving, or Ms. Drew’s dog with unauthorized access of a computer system. Granted, the prosecutor was a lot closer on this matter, but the point stands. I applaud Judge Wu’s decision, and I’m in some good company.

A federal judge does have the power to overrule a jury and declare a defendant innocent or guilty, however. What a few commentators have conflated with dismissing the case is entering a judgementnon obstante veredicto, abbreviated as JNOV. This translates to “judgement notwithstanding the verdict,” and it might seem bizarre for a judge to have this kind of power over the result of a trial, but it’s restricted to the much more mundane matters of law, and not the issues of fact.

Dismissing the case is different from overruling a jury’s verdict with a JNOV, as the latter simply states that the jury improperly applied the law, while the former signals a refusal to even allow a jury to apply this law to these facts. Again, think if Ms. Drew had been charged with reckless driving: an overwrought example, but a charge of reckless driving would have been dismissed, as well.

Regardless, I’m fairly certain we haven’t seen the last of the litigation in this case.